Federal Court of Australia

Hobson v Commonwealth of Australia [2022] FCA 418

ORDERS

THE COURT ORDERS THAT:

1.    A writ of habeas corpus issue.

2.    The respondents pay the applicant’s costs to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SC DERRINGTON J

1    Mr Hobson has neither been charged with nor convicted of any criminal offence. Despite this, except for a period of one month when he was released pursuant to an order of this Court quashing the original decision by the Minister for Home Affairs pursuant to s 501(2) of the Migration Act 1958 (Cth) to cancel his Class TY subclass 444 Special Category visa before the Minister again cancelled his visa pursuant to s 501(3), Mr Hobson has been held in immigration detention since February 2020. The Minister has identified that Mr Hobson does not pass the character test because the Minister reasonably suspects that Mr Hobson has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person that has been or is involved in criminal conduct within the meaning of s 501(6)(b) of the Migration Act. The alleged relevant organisation is the Rebels Outlaw Motorcycle Gang.

2    He is detained under s 189(1) of the Migration Act which requires the detention of an unlawful non-citizen. Mr Hobson was born in New Zealand in 1968 and is a citizen of that country despite having been a permanent resident of Australia since 31 October 1994. There is no dispute that Mr Hobson is neither an Australian citizen nor the holder of a valid visa and is therefore an unlawful non-citizen.

3    Mr Hobson contests the lawfulness of his detention under s 189(1) of the Migration Act for the reason that he is a ‘non-citizen non-alien’ as understood after the decision of the High Court in Love v Commonwealth of Australia [2020] HCA 3; 270 CLR 152. He seeks a writ of habeas corpus on the basis that, as an Aboriginal Australian, his detention is unlawful.

4    Mr Hobson claims to be an Aboriginal Australian. He says he is a Dharug man who is a biological descendant of Elanora Cooman (his great, great, great grandmother) an Indigenous woman born in Australia in approximately 1822.

5    Mr Hobson has a ‘Confirmation of Aboriginality’ from the Dharug Ngurra Aboriginal Corporation which was signed by Uncle Colin Locke and Sister Corina Norman on 20 September 2021.

6    The Minister accepts that Mr Hobson is biologically descended from an Aboriginal Australian and that he identifies as an Aboriginal Australian. The Minister also accepts that Mr Hobson has been accepted and recognised as a Dharug man by Dharug Elders. The Minister contends, however, that there is no evidence that the community that has purported to recognise Mr Hobson, being the Dharug People, is one that has remained continuously united in and by its acknowledgement and observance of laws and customs deriving from before the Crown’s acquisition of sovereignty, or that the recognition has been given by persons in that community with authority under laws and customs deriving from before the Crown’s acquisition of sovereignty. The Minister’s position is premised on the contention that this Court is bound to apply the reasoning of Nettle J in Love and that the decision of Mortimer J to the contrary in Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647 is plainly wrong and should not be followed.

7    The issue that must be decided by this Court is limited to whether, as at the date of trial, an officer held the reasonable suspicion that Mr Hobson was not an alien because he is an Aboriginal Australian and so his detention is beyond the constitutional reach of s 189(1) of the Migration Act.

8    There was no dispute that this Court has both jurisdiction, pursuant to s 39B(1A)(b) and (c) of the Judiciary Act 1903 (Cth), to deal with an application for habeas corpus in respect of a person detained under the Migration Act, and power to issue that writ and relief in its nature: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 at [21] per Allsop CJ; at [75] per Besanko J; at [187], [199] per Mortimer J.

9    Similarly, there was no dispute that s 21(7) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) applied to this proceeding, albeit that the parties were not ad idem as to the basis of its application. It was Mr Hobson’s contention that s 21(7) applies because the Supreme Court of Victoria ordered the transfer of this matter to this Court. The Minister contended, on the basis of the decision in Rizeq v Western Australia [2017] HCA 23; 262 CLR 1, that it applies by reason of the Federal Court’s sitting in Victoria, resulting in s 21(7) applying to the manner in which the Federal Court exercises its jurisdiction. I accept the Minister’s submission. Section 27(1) provides:

Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or regarding the lawfulness of his or her detention, and the court must –

a.    make a decision without delay; and

b.    order the release of the person if it finds that the detention is unlawful.

It was not contended that this section had any material effect on the usual practice of the Federal Court given the manner in which it has dealt with previous applications for habeas corpus.

10    On 25 March 2022, a Notice of a Constitutional Matter was filed by Mr Hobson, pursuant to s 78B of the Judiciary Act. The constitutional issue was expressed in the Notice in the following way:

In this matter, a question arises whether an officer for the purposes of the Migration Act 1958 (Cth) has a reasonable suspicion that the Applicant is not an Aboriginal Australian and in consequence cannot be detained under s 189 or removed under s 198 of the Migration Act 1958 (Cth), having regard to the constitutional holding in Love v Commonwealth (2020) 270 CLR 152.

11    None of the Attorneys-General indicated that he or she would intervene in the proceeding.

12    On Thursday 14 April 2022, I made an order that a writ of habeas corpus issue and indicated to the parties that my reasons for judgment would be published at a later date. These are those reasons.

Application for habeas corpus

13    On the hearing of his application for a writ of habeas corpus on 12 April 2022, Mr Hobson read and relied on his own affidavit dated 24 March 2022 (Aff-JDH), and three affidavits of Carina Ford dated 28 February 2022, 7 March 2022 (Second Aff-CF), and 8 April 2022 (Third Aff-CF). He also tendered a letter from Carina Ford Lawyers dated 25 March 2022 which was admitted by consent (Exhibit 1).

14    The Minister objected to two paragraphs of Mr Hobson’s affidavit on the basis that they contained bare statements of opinion – [7] and [9]. Paragraphs [7] and [9] stated that certain named Elders ‘had traditional authority’. Mr Hobson submitted that this was the very type of evidence to which s 78A of the Evidence Act 1995 (Cth) is directed. The objection is dealt with below in the context of my consideration of the evidence that was sought to be adduced.

15    The Minister read and relied on the affidavit of Mrs Kui Kathleen Grindlay, the detaining officer, dated 31 March 2022 (Aff-KKG) and which annexed a letter of advice from the Australian Government Solicitor dated 29 March 2022 (AGS Advice), privilege over which was waived by the Minister.

16    The Minister invited me to draw a Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference from the circumstance that Mr Hobson was not being called to give evidence in chief. Mr Hobson was present in Court at the hearing. Mr Hobson’s affidavit expressly offered to provide further information (Aff-JDH at [24]). The Minister expressly declined to cross-examine Mr Hobson on the basis that unanticipated evidence about the content of traditional laws and customs could be prejudicial to the Minister’s position. That was an unattractive submission, to say the least, in circumstances where a person’s liberty is at stake and where the Minister bears the onus of justifying the continuing detention of the person.

17    As has already been observed above, Mr Hobson has been in immigration detention, with the exception of one month, since February 2020. In Mashood v Commonwealth [2003] FCA 1147; 133 FCR 50 at [21], Goldberg J said:

Loss or deprivation of liberty, even for a short time, is a matter of irreparable harm. The right to enjoy personal liberty is “the most elementary and important of all common law rights”: Trobridge v Hardy (1995) 94 CLR 147 at 152 per Fullagar J. In Re Bolton; Ex parte Beane (1987) 162 CLR 514 Brennan J said at 523: “The law of this country is very jealous of any infringement of personal liberty …” Liberty is a precious and valued right. Much blood has been shed in defence of liberty. In Preston v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 420, French J said at [27]:

Liberty lost is never recoverable even if partially compensable by damages.

I adopt with respect with his Honour’s observation, although I am inclined to doubt the proposition that liberty lost can be compensated, even partially, by the award of a monetary sum.

18    As I said in Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423 at [46]:

1.    The approach and principles relevant to an application for an order in the nature of habeas corpus in the context of immigration detention of an Aboriginal Australian under the Migration Act have been explained by the Full Court in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 358 ALR 405. They may be summarised as follows:

2.    The writ of habeas corpus is a writ of right, although not of course: McHugh at [58] per Allsop CJ; at [77] per Besanko J.

3.    An application for an order in the nature of habeas corpus can be entertained in this Court as a remedy within, or as an incident of, the matters that include the judicial review of the decision under s 501CA and the claim under s 39B of the Judiciary Act that s 189 of the Migration Act does not apply to an Aboriginal Australian: McHugh at [23] per Allsop CJ; at [75] per Besanko J; at [235]-[236], [248] per Mortimer J.

4.    The question for consideration in the application is whether the detention is and was at all times justified by s 189(1) of the Migration Act being:

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

McHugh at [24]-[25] per Allsop CJ.

5.    Sections 13 and 14 of the Migration Act must be read down and construed so as not to exceed legislative power: s 15A of the Acts Interpretation Act 1901 (Cth); Love at [285] per Nettle J; at [390] per Gordon J; at [398] per Edelman J: McHugh at [28] per Allsop CJ.

6.    Sections 13(1) and 14(1) must be taken to be construed as directed only to non-citizens who are not Aboriginal Australians: McHugh at [29] per Allsop CJ.

7.    In order to continue to detain a person, an officer must continue to have a reasonable suspicion that the person is an unlawful non-citizen and is not an Aboriginal Australian: McHugh at [76] per Besanko; at [332] per Mortimer J; Allsop CJ leaving open whether the fact of a person not being an Aboriginal Australian was a fact to be proved by the detainer seeking to rely on s 189 before any question of relevant suspicion arose at [51]-[52]; Besanko J agreeing at [83].

8.    The applicant for the writ carries ‘at least an evidential burden of establishing that there is a reason to suppose that his detention has ceased to be lawful’: Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 at [176]; Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 256 CLR 285 at [39]: McHugh at [60] per Allsop CJ; at [92] per Besanko J; at [267]-[273] per Mortimer J.

9.    The burden then shifts to the respondent to show, at the time of trial, that the detention is lawful. Proof of the existence of a reasonable suspicion must be clear and cogent and may be discharged on the balance of probabilities: McHugh at [57], [60] per Allsop CJ; at [90] per Besanko J; at [281], [294], [340] per Mortimer J.

Construction of s 189

19    The Minister submitted that I was wrong – as was the Full Court in McHugh – to the extent that I followed the obiter observation of Allsop CJ in McHugh that the definition of ‘unlawful non-citizen’ in s 14 of the Migration Act should be read down such that ‘non-citizen’ in ss 189 and 196 of the Migration Act should be read as ‘alien’ (see at point 4. and 5. above)

20    Sections 13 and 14 of the Migration Act define the concepts of lawful and non-lawful citizens:

13    Lawful non-citizens

(1)    A non-citizen in the migration zone who holds a valid visa that is in effect is a lawful non-citizen.

(2)    An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.

14    Unlawful non-citizens

(1)     A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

(2)    To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen.

21    Section 189(1) of the Migration Act provides:

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

22    The Minister contended that, as a matter of principle, the ‘reading down’ route goes too far and cannot be consistent with the Parliament’s intention or s 15A of the Acts Interpretation Act 1901 (Cth) because if the phrase ‘non-citizen’ does not include people who meet the tripartite test, those people could not apply for nor be granted a visa (because of the operation of ss 29 and 45 of the Migration Act). The Minister argued that the correct approach, in accordance with ordinary principles of statutory interpretation, was to construe the term ‘non-citizen’ in ss 189 and 196 of the Migration Act in accordance with its defined meaning in s 5 (‘non-citizen means a person who is not an Australian citizen’). The Minister contended that any constitutional overreach that might arise in the application of s 189 because of the High Court’s decision in Love is to be dealt with by the partial disapplication of s 189 when a person cannot reasonably be suspected of being an alien. Thus, although ss 189 and 196 do not in terms refer to Aboriginality as a matter for the detaining officer’s consideration, consistent with the High Court’s constitutional finding in Love, the term ‘non-citizen’ should, in effect, be understood as the legislature’s byword for ‘alien’ as it is now understood – being a person who is both a non-citizen and a non-Aboriginal Australian.

23    Properly understood in this way, it was argued, the first basis for release under s 196(4) of the Migration Act contended for by Mr Hobson does not arise. Section 196(4) provides:

Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA, or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

(my emphasis)

24    The Minister submitted that, in this case, the power of a court to release a person from immigration detention on the basis that the person is not an unlawful non-citizen does not arise because whether the person detained is an alien is not determinative of whether the person is an unlawful non-citizen. That being so, the only relevant basis for release under s 196(4) is whether the detention is unlawful. In this case, this turns on upon whether the application of s 189 to Mr Hobson exceeds the legislative power of the Parliament because he cannot reasonably be suspected of being an alien – being a person who is both a non-citizen and a non-Aboriginal Australian.

25    The relationship between s 189 of the Migration Act, s 15A of the Acts Interpretation Act and the source of power for s 189 in s 51(xix) depends upon Constitutional considerations which are the subject of two matters before the High Court in which decisions are reserved: Thoms v Commonwealth of Australia (B56/2021) [2022] HCATrans 024, heard on 9 March 2022 and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery (S192/2021), heard on 6 and 7 April 2022. It is unnecessary and undesirable for me to decide the competing Constitutional issues raised by the parties, or to revisit my findings in Montgomery, in these reasons.

26    It is sufficient for the purposes of resolution of Mr Hobson’s application to this Court for an order in the nature of habeas corpus that I accept the Minister’s preferred construction, being that the only relevant basis for release under s 196(4) is whether Mr Hobson’s detention pursuant to s 189(1) is unlawful because it exceeds the legislative power of the Parliament. This in turn depends solely on the question of whether a relevant officer ‘knows or reasonably suspects’ that Mr Hobson ‘is a non-citizen and a non-Aboriginal Australian’. If so, Mr Hobson must be detained: Migration Act s 189(1).

The ratio of Love and the approach of Nettle J

27    As I have already said, there is no dispute that Mr Hobson is not a citizen. Nor does he hold a visa because of the operation of s 501(3). Mr Hobson contended that an officer, acting under s 189(1), cannot reasonably suspect him to be an alien because he is an Aboriginal Australian. This follows from the decision in Love, in which a majority of the High Court decided that an Aboriginal Australian is not an ‘alien’ within the meaning of s 51(xix) and so is not within the reach of the aliens power. Until the High Court determines otherwise, I reiterate the view I expressed in Montgomery (at [48]) and, respectfully, with that expressed by Mortimer J in Helmbright at [108], that the ratio decidendi of Love is the proposition that ‘Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution’: Love at [81] per Bell J.

28    That tripartite test for Aboriginality was set out by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at 70, where his Honour said:

[m]embership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.

29    I respectfully agree with and adopt Mortimer J’s analysis of the four majority judgments in Love and concur with her Honour’s conclusion that there is no modification of the Mabo (No 2) test by any of the majority justices (Helmbright at [211]). In her Honour’s view, the correct understanding of the test as explained by Brennan J is that there must be (Helmbright at [148]):

a.    biological descent from the “indigenous people”, which is a reference to an identifiable group, clan or community; and

b.    mutual recognition of a person’s membership of that same group, clan or community by the person concerned and by elders or others enjoying traditional authority within that group, clan or community. In this context, what is required is authority to permit or preclude membership that has its source in the norms handed down from generation to generation, since prior to European settlement.

30    Her Honour reasoned, at [141]:

Therefore, when Brennan J describes mutual recognition by those with “traditional authority”, and “by elders”, his Honour is describing those people who are seen, by their own community, as having authority under the laws and customs of that community as passed down through the generations, to make decisions for and about the community (including membership of the group or clan itself). As his Honour recognised, there may have been some adaptation and change to the content of law and custom because of the impact of European settlement.

31    Her Honour, restated (at [142]) and rejected (at [143]) the submission that Brennan J’s description of community recognition was to be read subject to his observations (Mabo No 2 at 59-60):

when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. Australian law can protect the interests of members of an Indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so).

(emphasis added by Mortimer J)

and said, at [143]:

… The emphasised parts assist in understanding that his Honour was here explaining that the common law could not recognise and enforce title to land sourced in traditional law and custom if that law and custom was no longer observed and acknowledged by the group itself. The continuing observance of traditional law and custom, in a sufficient way, and allowing for adaption and change, was how the native title itself survived. This fundamental proposition which conceptually underpins what is now described as the “continuity” requirement in s 223 of the Native Title Act 1993 (Cth), wholly concerns survival of native title to land (and waters). It does not at all concern, and was not in my respectful opinion intended to concern, the survival of a community of Indigenous people, as a community. Nor was it intended to suggest that, if there was no proven continued observance of traditional law and custom about rights and interests in particular land and waters, all connection, and sense of connection, to the land and waters of that community was lost, or that the community itself – as an entity to which people could belong and in which culture, language, law and custom could continue to reside – was lost. What was lost, in his Honour’s view, was native title capable of being recognised by the common law.

32    I respectfully share Mortimer J’s understanding of the tripartite test as expressed by Brennan J.

33    The Minister submitted that it is possible to discern differences between Nettle J and the remainder of the majority judgments with respect to the third element of the tripartite test. In Love, Nettle J said:

278    So long as an Aboriginal society which enjoyed a spiritual connection to country before the Crown’s acquisition of sovereignty has, since that acquisition of sovereignty, remained continuously united in and by its acknowledgement and observance of laws and customs deriving from before the Crown’s acquisition of sovereignty over the territory, including the laws and customs which allocate authority to elders and other persons to decide questions of membership of the society, the unique obligation of protection owed by the Crown to the society and each of its members in his or her capacity as such will persist.

…

280    … It is sufficient for the disposition of this matter that the Crown in right of Australia owes an obligation of permanent protection to a resident non-citizen of Aboriginal descent who identifies as a member of an Aboriginal society and is recognised as such according to laws and customs continuously observed since before the Crown’s acquisition of sovereignty, and that the obligation of permanent protection extends to not casting that person out of Australia as if he or she were an alien.

34    In his ultimate conclusion, Nettle J said:

287    … In the case Mr Love, however, although it was agreed that an elder of the Kamilaroi tribe had recognised him as a descendant of that tribe, the Commonwealth did not concede that he had been recognised by “elders or others having traditional authority”, that is, authority under laws and customs observed since before the Crown’s acquisition of sovereignty.

35    I am unable to discern anything in Nettle J’s judgment, nor in these passages in particular, that cast any doubt on the certainty of the ratio as stated by Bell J at [81] on behalf of the majority to the effect that all four majority judges have joined in adopting the tripartite test from Mabo (No 2) as sufficient for the statement of principle and the resolution of that case.

36    To the extent that Minister’s concern is with Nettle J’s use of the term ‘Aboriginal society’, the continued existence of which in a Yorta Yorta (Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 at [49]) sense is a necessary prerequisite to satisfaction of the third limb, I do not accept that such a conclusion follows from Nettle J’s reasons. Nettle J said (citations omitted):

269    Logically anterior to, however, and more fundamental than the common law’s recognition of rights and interests arising under traditional laws and customs is the common law’s recognition of the Aboriginal societies from which those laws and customs organically emerged. As Gleeson CJ, Gummow and Hayne JJ explained in Yorta Yorta Aboriginal Community v Victoria:

“Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, ‘socially derivative and non-autonomous’. As Professor Honoré has pointed out, it is axiomatic that ‘all laws are laws of a society or group’. Or as was said earlier, in Paton’s Jurisprudence, ‘law is but a result of all the forces that go to make society’. Law and custom arise out of and, in important respects, go to define a particular society. In this context, ‘society’ is to be understood as a body of persons united in and by its acknowledgement and observance of a body of law and customs”.

270    Hence, as that passage conveys, under the common law of Australia, an Aboriginal society retains an identifiable existence so long as its members are “continuously united in their acknowledgment of laws and observance of customs” deriving from before the Crown’s acquisition of sovereignty, and such may be inferred from “subsidiary facts” of a social, cultural, linguistic, political or geographic kind.

271    … Thus, for present purposes, the most significant of the traditional laws and customs of an Aboriginal society are those which allocate authority to elders and other persons to decide questions of membership. Acceptance by persons having that authority, together with descent (an objective criterion long familiar to the common law of status) and self-identification (a protection of individual autonomy), constitutes membership of an Aboriginal society: a status recognised at the “intersection of traditional laws and customs with the common law”.

(my emphasis)

37    The Minister’s attempt to recast the third element of the tripartite test as stated by Brennan J on the basis of the judgment of Nettle J in Love is, with respect, to create a distinction without a difference.

Questions of proof

38    Mr Hobson, as an applicant for a writ of habeas corpus, is required to adduce evidence demonstrating ‘probable cause’, or a ‘case fit to be considered’. The burden then shifts to the Minister, as the detainer, to prove, by clear and cogent evidence, the lawfulness of his detention.

39    As has been observed already, and as is clear from decisions such as Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at [28], Fernando v Commonwealth of Australia [2012] FCAFC 18; 200 FCR 1 at [71], Okwume v Commonwealth [2016] FCA 1252 at [196], Guo v Commonwealth [2017] FCA 1355 at [83], and McHugh at [270],

7.     the Commonwealth bears the onus of proving the lawfulness of detention and thus must prove the existence of the relevant reasonable suspicion in the mind of the detaining officer or officers, and

8.     the Commonwealth’s complaints about the impracticality and inconvenience of having to prove the existence and subsistence of the required state of mind on the part of the detaining officer or officers do not carry weight. For one thing, when it comes to the deprivation of individual liberty, the common law is a vigilant guardian, and complaints by the person depriving another of their liberty that they might be inconvenienced by having to prove the lawfulness of the detention garner little support. For another, proof sufficient to establish the lawfulness of immigration detention involves matters of fact and of inference from fact. The Commonwealth is free to assist itself in discharging the onus of proof by the implementation of whatever systems, processes and safeguards it sees fit and by the calling of such evidence in any particular case as it sees fit.

40    The Minister characterised the existence of a ‘reasonable suspicion of alienage’ as a question of constitutional fact. As described by Dixon CJ in Breen v Sneddon [1961] HCA 67; 106 CLR 406, 411, a constitutional fact is ‘…information which the court should have in order to judge properly of the validity of this or that statute or of this or that application by the Executive Government of State or Commonwealth of some power or authority it asserts’. I accept that characterisation.

41    The Minister contended that questions of constitutional fact do not lend themselves to notions of onus or burden of proof (Clubb v Edwards [2019] HCA 11; 267 CLR 171 at [151]-[153] per Gageler J; at [347]-[348] per Gordon J), nor is the Court constrained by rules of evidence. So much too can be accepted. In Maloney v The Queen [2013] HCA 28; 252 CLR 168, in considering whether s 8 of the Racial Discrimination Act 1975 (Cth) placed a burden of proof on a party arguing that an impugned law is a special measure, Gageler J observed that facts relevant to the existence of a special measure are not of the same nature as ordinary facts. His Honour said (citations omitted):

351    A distinction has long been drawn between “ordinary questions of fact”, which arise between parties and which are determined in accordance with the ordinary rules of evidence, and “matters of fact upon which … the constitutional validity of some general law may depend”, which cannot and do not form issues between parties to be tried like the former questions” and which fall to be ascertained by a court “as best it can”. A court finding constitutional facts is not constrained by the rules of evidence. The court “reaches the necessary conclusions of fact largely on the basis of its knowledge of the society of which it is a part”, “supplementing … that knowledge [by processes] which [do] not readily lend [themselves] to the normal procedures for the reception of evidence”.

352    Gerhardy illustrated that “constitutional facts” form part of a larger genus. That larger genus has long been referred to in the United States as “legislative facts”. It is appropriate to adopt that terminology in Australia.

353    The nature of legislative facts and the nature of the duty of a court to ascertain them tell against any a priori constraint on the sources from which the court may inform itself. The sources may, but need not, be “official”. It is desirable, but not inevitable, that they be “public or authoritative”. They can include “inferences … drawn from the regulations and statutes themselves” and “statements made at the bar”. Subject to the requirements of procedural fairness inherent in the judicial process, the ultimate criterion governing the use of information from any source is that a court is able to consider the material sufficiently probative of the legislative fact to be found.

42    Whilst the facts underlying the constitutional validity of s 189 in its application to Mr Hobson may well not easily lend themselves to notions of proof or onus of proof, in the context of an application for habeas corpus where the fundamental right to a person’s liberty is at stake, it remains incumbent on the Minister to prove the lawfulness of Mr Hobson’s detention on the balance of probabilities (McHugh at [60]). Difficulties of proof were acknowledged by Nettle J in Love, where his Honour said, at [281]:

It was contended by the Commonwealth that it might often prove difficult to establish that an Aboriginal society has maintained continuity in the observance of its traditional laws and customs since the Crown’s acquisition of sovereignty over the Australian territory. No doubt, that is so. But difficulty of proof is not a legitimate basis to hold that a resident member of an Aboriginal society can be regarded as an alien in the ordinary sense of the term. It means only that some persons asserting that status may fail to establish their claims. There is nothing new about disputed questions of fact in claims made by non-citizens that they have an entitlement to remain in this country.

(my emphasis)

Has Mr Hobson satisfied his evidential burden that there is reason to suppose his detention has ceased to be lawful?

43    Adopting the approach contended for by the Minister – and assuming that Nettle J’s approach in Love differs from that in Mabo (No 2) such as to require proof that the Dharug, as a society, continues as a pre-sovereignty Aboriginal society – which I do not accept, the question to be determined is whether Mr Hobson has raised sufficient evidence to demonstrate ‘probable cause’ or a ‘case fit to be considered’ that he is an Aboriginal Australian and that his detention is therefore unlawful.

44    On Nettle J’s approach, Mr Hobson will be a member of an Aboriginal society if he has been accepted by persons having that authority, together with descent and self-identification.

45    Mr Hobson deposed (Aff–JDH), inter alia:

[2]    I am a proud Aboriginal Australian.

[4]    I am the biological descendent of an Indigenous woman named Elanora Cooman who was born in Australia in approximately 1822. Elanora Cooman was from the Birrabirragal Clan and also had connections to the Cadigal Clan. She is my biological great, great, great grandmother.

[5]    Elanora Cooman was the daughter of Nelly (alternate names being Queen Nelly, Black Nellie, Nelly Oolonnga, Nelly Gelonga, Nellie O L, Nah Doongh Oolonga) and Coomar Kourban (alternate name being Cooman Aboriginal, Looman Aboriginal or Cooman).

[6]    Elanora’s mother was from Mulgoa (Penrith) and her father was from Gweagal (Botany Bay to Port Jackson). Coomar’s father, Gooman King Koomar Cooman, was from Gabrogal (Camden). Gabrogal (also known as Cabrogal) and Mulgoa are part of the Darug nation. Gweagal is part of the Dharawal. The Birrabirragal clan spoke languages now known as Darug and Dharawal.

[7]    I have a formal Confirmation of Aboriginality from the Dharug Ngurra Aboriginal Corporation which was signed by Uncle Colin Locke and Sister Corina Norman on 20 September 2021 … Uncle Colin Locke and Sister Corina Norman are Elders and have traditional authority among my people.

46    I pause at this point to note the objection by the Minister to the opinion expressed in this paragraph that Uncle Colin Locke and Sister Corina Norman ‘have traditional authority among my people’. I accept Mr Hobson’s submission that the opinion rule does not apply to evidence of an opinion expressed by a member of an Aboriginal group about the content of the traditional laws and customs of the group because of s 78A of the Evidence Act (Lacey (a pseudonym) v Attorney General for New South Wales [2021] NSWCA 27; 104 NSWLR 333 at [10]). Section 78A was inserted in the Evidence Act by the Evidence Amendment Act 2008 (Cth) sch 1 s 36 following a recommendation of the Australian Law Reform Commission, the New South Wales Law Reform Commission, and the Victorian Law Reform Commission (the Commissions) in their joint Report Uniform Evidence Law (ALRC 102, December 2005, Rec 19-2). Section 78A provides:

The opinion rule does not apply to evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group.

47    The application of s 78A in the present context is complicated by the circumstance that the Minister does not concede that Mr Hobson is an Aboriginal Australian. The Minister does not accept that those identified by Mr Hobson as having traditional authority have such authority under laws and customs observed since before the Crown’s acquisition of sovereignty.

48    The Commissions were prescient. In considering the exception to the opinion rule and whether the proposed amendment should apply to a broader category of evidence including that based on ‘oral knowledge’ or ‘oral tradition’, the Commissions observed:

19.89 This question arose out of concern that the term ‘traditional laws and customs’ might be overly restrictive. For instance, in the native title context, there was a concern expressed in DP 69 that ‘traditional’ has been interpreted to mean the normative rules of ATSI societies existing before the assertion of sovereignty by the British Crown.

49    The Commissions concluded,

19.100    The Commissions believe that ‘traditional laws and customs’ is the most appropriate term to adopt in the uniform Evidence Acts. This view seems uncontroversial in light of the consultations and submissions on this issue. The Commissions are concerned to ensure that the wording adopted in the Acts covers the full range of matters within the scope of this concept.

19.101 The most effective way to address this concern is to define the term in the uniform Evidence Acts, enumerating a non-exhaustive list of matters that fall within the ambit of ‘traditional laws and customs’. The Commissions believe that matters which the Acts should articulate explicitly as being within this ambit are evidence relating to the ‘customary laws, traditions, customs, observances, practices, knowledge and beliefs’ of an ATSI group. Subject to one exception, these are the same matters as were proposed in the draft statutory definition in DP 69. The difference is that the definition here recommended also includes within the ambit of ‘traditional laws and customs’ the ‘knowledge’ of members of an ATSI group. This alteration has been made to take into account the widespread view that this is an important component of ATSI traditional laws and customs, in contrast with the Anglo-Australian legal system.

50    The Evidence Amendment Act expressly enacted Rec 19-2 (Evidence Amendment Bill 2008, Explanatory Memorandum, [100]) but was silent as to Rec 19-3, being that ‘The definition of ‘traditional laws and customs’ in the uniform Evidence Acts should include ‘the customary laws, traditions, customs, observances, practices, knowledge and beliefs of a group (including a kinship group) of Aboriginal or Torres Strait Islander persons’. Nevertheless, it is tolerably clear that Parliament intended the words ‘traditional laws and customs’ to bear a meaning that was broader than that used in the native title context, given its reference to ‘the requirement of relevance in ss 55 and 56 [which] may operate to exclude opinions which do not have sufficient indications of reliability, eg where the person is a member of the group but has had little or no contact with the group’ and by reference to the safeguards in the powers of courts to exclude or limit the use of evidence (Evidence Amendment Bill 2008, Explanatory Memorandum, [103]).

51    The Minister did not contest that Mr Hobson is a member of an Aboriginal group – the Dharug people. Nor did the Minister contest that Uncle Colin Locke and Sister Corina Norman are recognised as Elders within that group. In my view, the opinion evidence given by Mr Hobson in [7] of Aff-JDH is admissible pursuant to s 78A of the Evidence Act: see also Re Estate Jerrard, Deceased [2018] NSWSC 781; 97 NSWLR 1106 at [95]-[97].

52    Nevertheless, that evidence remains to be weighed against the other evidence that is before the Court relevant to the determination of whether the officer’s ‘suspicion that Mr Hobson does not meet, or does not probably meet, the third limb of the tripartite test’ and so ‘he is an alien’ (Aff -KKG at [9]) is reasonable.

53    Mr Hobson deposed further (Aff-JDH):

[8]    To clarify what an Elder means, it is a person that has the respect of our people. However, it depends on your age as to how you refer to a person. Uncle Colin Locke is an Elder and he is older than me, so I call him Uncle. Sister Corina Norman is an Elder but she is younger than me, so I call her Sister not Aunty.

[9]    Uncle Colin Locke is a director of the Dharug Ngurra Aboriginal Corporation and Dharug Elder who has traditional authority about who can be a member of the group.

54    A similar objection to that made in respect of [7] of Aff-JDH was made by the Minister to the opinion expressed in [9] that Uncle Colin Locke ‘has traditional authority’. For the same reasons, evidence of that opinion is admissible.

55    Mr Hobson deposed further (Aff-JDH):

[10]     Sister Corina Norman … is a director and secretary of the Dharug Ngurra Aboriginal Corporation and she is also a Dharug traditional custodian … Sister Corina holds a respected position with our people because of her knowledge, contribution and dedication to helping our people.

[11]    I am also recognised as Aboriginal by the remaining directors of the Dharug Ngurra Aboriginal Corporation on behalf of Dharug Elders and Respected Peoples … Uncle Lex, a Dharug Custodian of Dharug country …, Jasmine Seymour a Dharug woman who attested to me being an active participant in Dharug Dalang language lessons … and Leo Hobson, my older brother and member of the Dharug Ngurra people.

[12]     As well as the confirmation of Aboriginality, I have other documents that confirm my Aboriginality which were also annexed to the [Second Aff-CF].

[13]    My Medicare records confirm that my ‘descent’ is Aboriginal.

[23]    My extended family, including my siblings, have also suffered because of my detention. A few of them have told me that they wish that they could have done more to document our mob sooner to avoid me having to be in detention for so long while we responded to correspondence from the Department of Home Affairs requesting that I prove I am Aboriginal. They all know I am Aboriginal, as do I. We never thought we would have to provide documents for the government to accept something as true as that I am human. It’s also been so difficult for me to obtain all these documents while I have been in detention and due to the disruptions caused by COVID-19.

[24]    On that point, I emphasise that what I have written here is just a summary concerning my Aboriginality. I have plenty more I can say about these matters to the Court if it would assist. Trying to record everything that shows I am Aboriginal is like trying to record everything that shows I am human: it is so hard to express something so fundamental and, to me and those that know me well, obvious.

56    Mr Hobson also relied on the Second Aff-CF which annexed, inter alia, a response to a request from the Department of Home Affairs dated 11 November 2021 for further information relating to the ‘Confirmation of Aboriginality’ certificate previously provided. Specifically it was suggested that Mr Hobson may wish to provide: confirmation of his acceptance as a member of the Dharug Ngurra Aboriginal Corporation and, if so, how the membership processes might be said to reflect the traditional laws and customs of the society it represents; information that he is recognised specifically by elders or other members enjoying traditional authority among the people, including information or documents that would confirm their status; information as to how the Dharug people can be said to continue to adhere to traditional laws and customs deriving from before the Crown’s acquisition of sovereignty noting the decisions in Gale v Minister for Land & Water Conservation for New South Wales [2004] FCA 374 (Gale (No 1)) and Gale on behalf of the Darug Tribal Aboriginal Corporation v New South Wales Minister for Land and Water Conservation [2011] FCA 77. I return to the import of Gale (No 1) below.

57    Mr Hobson’s response to the request from the Department of Home Affairs included:

(1)    (‘CF-5’) A letter from the Dharug Ngurra Aboriginal Corporation ICN: 2734 dated 6 December 2021 which stated, inter alia,

•    Dharug Ngurra Aboriginal Corporation is not an organisation that provides membership as a tokenistic gesture. We adhere to a three-tiered assessment and ask you to please refer to AIATSIS ‘working criteria’ for a Confirmation of Aboriginal or Torres Strait Islander heritage [citing a Commonwealth Government website for the criteria – www.aiatsis.gov.au/proof-aboriginality]:

a.    being of Aboriginal or Torres Strait Islander descent,

b.    identifying as an Aboriginal or Torres Strait Islander persons, and

c.    being accepted as such by the community in which you live, or formerly lived.

•    We represent twenty-nine clanal/bands, and these bands hold cultural knowledge and values. Our membership holds traditional Lore spanning the Sydney Basin including the Blue Mountains, Hawkesbury, Burragorang Valley and through to the rivers along the Cumberland Plains to the sea. We are both fresh water and saltwater Yura (People).

•    We will refer you to a condensed selection of peer reviewed publications, which support a continuity of Dharug Peoples traditional practices and our intercultural aims [four publications were listed].

(2)    (‘CF-5’) An extract from the Office of the Registrar of Indigenous Corporations as at 11 August 2021 for the Dharug Ngurra Aboriginal Corporation (formerly the Darug Tribal Aboriginal Corporation) which, relevantly, records that Colin Locke and Corina Norman are Directors.

(3)    (‘CF-5’) A website extract from the Commonwealth’s Office of the Registrar of Indigenous Corporations website (www.oric.gov.au) which, relevantly, states:

•    It’s been a rough ride for Darug traditional custodians but they are celebrating survival, cultivating respect and gaining strength – and ever more recognition of their rights and interests in their ancestral lands.

•    Darug clans come from areas in and around what is now Sydney. As early as April 1788, Governor Phillip selected a site in Parramatta for agricultural settlement, so Darug clans were among the first Aboriginal people to experience the calamity and deprivations of colonial occupation.

•    Historically, population statistics for Aboriginal people in the area are patchy and variable, but Darug clans have always been there, and there they persist, healing and growing.

•    The corporation set up to preserve and promote Darug culture, care for country and heritage – Darug Tribal Aboriginal Corporation (DTAC) – first incorporated in 1996. The following year it lodged a native title claim over a small part of Darug ancestral lands – 10 hectares in the Lower Portland area of northwest Sydney. That claim was withdrawn but for the corporation, native title is unfinished business. Aware that as yet it lacks sufficient evidence of continuous occupation, DTAC set up a research centre as well as an ‘interested party’ in archaeological works, with which developers are required to consult.

•    City of Parramatta Council maintains its acknowledgment of Darug people.

(4)    (‘CF-6’) A letter from Lexodious Dadd dated 8 December 2021 which said, inter alia, ‘My name is Lexodious Dadd, commonly known as Uncle Lex. I am a Dharug Custodian of Dharug country’.

58    In my view, this material was sufficient for Mr Hobson to ‘put in issue’ the lawfulness of, and justification for, his executive detention. Specific to the third limb of the tripartite test, the material asserts, and was not contested by the Minister, that Mr Lexodious Dadd was a ‘Dharug Custodian’, who supported Mr Hobbs (and his brother) ‘in their rights and responsibilities to Dharug Country, the Country they belong to and are accepted as such from their community’. The material also contained the letter from the Corporation signed by ‘The Board of Directors Dharug Ngurra Aboriginal Corporation on behalf of our Elders and Respected Peoples’ which said, in part, ‘Dharug Ngurra Aboriginal Corporation advocates for the rights and interests of Dharug yura (Peoples) by bringing them together to heal and celebrate a living continuous culture’. In the light of this material, Mr Hobson’s evidence was that Uncle Colin Locke and Sister Corina Norman were elders who ‘have traditional authority among my people’ and that Uncle Colin Locke has ‘traditional authority to make decisions about who can be a member of the group’ (Aff-JDH at [7]-[9]) is accorded some weight.

59    Thus, the burden lay on the Minister to show ‘positive authority’ or ‘lawful authority’ at the time of trial for Mr Hobson’s detention.

Has the Minister discharged her burden?

60    The Minister relied on the evidence of Mrs Kui Kathleen Grindlay, who is employed as the Assistant Director within the Status Resolution and Visa Cancellation Division in the Department of Home Affairs, based at the Melbourne Immigration Transit Accommodation (MITA). Mrs Grindlay became Mr Hobson’s detaining officer on 29 March 2022, and assumed responsibility for Mr Hobson’s ongoing detention at MITA. Her affidavit, affirmed on 31 March 2022 (Aff–KKG), was read. The affidavit disclosed that Mrs Grindlay had held legal positions previously (Aff-KKG at [1]). Mrs Grindlay confirmed the truth and accuracy of the content of her affidavit and she was cross-examined on her evidence. During cross-examination, Mrs Grindlay gave evidence that she was a lawyer by profession and had been admitted to practice in 2002.

61    Mrs Grindlay was not asked by Counsel for the Minister whether she currently, being at the time of the trial, suspects that Mr Hobson was not an Aboriginal Australian. Mr Hobson submitted that it was not open to the Minister to plug that gap by resort to the presumption of continuance. The Minister contended that Mrs Grindlay’s affirmative answers to the questions, ‘Now, I believe you made an affidavit in this matter on 31 March; is that correct?’ and ‘Is it true and correct to the best of your knowledge’, should be taken to mean that what she said on 31 March 2022 is true and correct now sitting in the witness box.

62    In McHugh, Mortimer J emphasised that there is no room for broad presumptions or inference. Her Honour said, at [333]:

For the executive to be authorised by s 189 to detain an individual, there must, at all times, be “an officer” who holds the requisite suspicion about the person’s status, and that officer must have, at all times, reasonable grounds to hold such a suspicion. Of course, it may well be that the identity of the individual officer who is responsible for a person’s detention changes from time to time. As Jagot J said in Guo, the Commonwealth is free to establish whatever systems it considers adequate and appropriate to ensure it prove compliance with s 189(1). At [81] her Honour said:

The power which is vested in an officer to detain a person under s 189(1) is confined. If an officer detains a person, in the sense of either takes or keeps a person in an immigration detention, that officer must hold the requisite state of mind. All else is an issue of fact or inference from fact in circumstances where the onus is on the Commonwealth, not the detained person, and the Commonwealth can establish whatever procedures it wishes to ensure it can prove that any detention under the Act is lawful.

63    Of course, in McHugh, the presumption of continuance was applied over a period of 18 months. In this case, the Minister submitted that McHugh was distinguishable on the basis of the relatively short period of time between the swearing of the affidavit on 31 March 2022 and the giving of the oral testimony on 12 April 2022, which was characterised in submissions as ‘no such gap whatsoever’. Were that the only relevant gap in the evidence, I would have been inclined to accept the Minister’s submission. But it was not.

64    Mr Hobson has been detained most recently since 3 December 2020. Mrs Grindlay became the relevant officer with respect to Mr Hobson on 29 March 2022, only two days before she swore her affidavit. There was no evidence that any officer held the relevant reasonable suspicion at any time between 3 December 2020 and 29 March 2022. Mrs Grindlay confirmed in cross-examination that the only departmental records relating to Mr Hobson to which she had referred were those found in the ICSE records that were annexed to her affidavit and marked ‘KG-1’ and those in the TRIM system, which were neither described nor produced. The records marked ‘KG-1’ comprised basic personal information, details of the previously held visa, and information about administrative applications and/or processes. She confirmed that monthly reviews of detainees took place, which record a detainee’s immigration and detail steps taken to resolve a detainee’s status and to consider whether detention remained appropriate. She agreed that the documents referred to in her affidavit were the ‘sum total’ of all the documents she had considered. These did not include the monthly reviews. Mrs Grindlay also confirmed that she had never spoken with anyone other than the legal division about the issue of her reasonable suspicion. I infer that she had not discussed Mr Hobson’s circumstances with his previous Status Resolution Officers.

65    In Burgess v Commonwealth of Australia [2020] FCA 670; 276 FCR 548, a case also concerned with the lawfulness of a person’s detention under ss 189 or 196(4) of the Migration Act, Besanko J held, at [80]:

… as far as s 189 is concerned, the initial detention of the applicant by Messrs Jamieson and Clifford on 9 June 2016 and by Mr Jones on 16 September 2016 was authorised by s 189 of the Act. The applicant’s detention thereafter, in the periods for which there is no evidence from the respondent of a detaining officer (or indeed any officer) holding a reasonable suspicion that the applicant was an unlawful non-citizen, was not authorised by s 189 because that section requires a detaining officer or officers to hold a reasonable suspicion at all times during a person’s detention.

66    After identifying this as the correct approach in McHugh, Mortimer J said, at [337]:

It may be accepted that the Commonwealth as the detainer may chose a documentary mode of proof and thus rely on the Court drawing inferences about an officer’s state of mind from the documents: see, eg, Okwume (FC) at [325]. It will always be a question of fact on the evidence whether there is a sufficient probative basis for such an inference to be drawn. This however is an example of a specific inference as to a specific officer’s state of mind at a relevant time. It is not any broad or general inference extending over months or years of detention by (it would appear) a number of different Commonwealth officers. That could not comply with proof of the justification for detention on the terms of s 189(1).

67    The Minister’s failure to prove the existence of a reasonable suspicion throughout his detention that Mr Hobson is not an Aboriginal Australian is sufficient to grant the relief sought.

68    If I am wrong in this conclusion, then it is necessary to consider the substantive challenge to Mrs Grindlay’s evidence, being her state of satisfaction as to whether Mr Hobson is an unlawful non-citizen for the purposes of s 189 of the Migration Act because she reasonably suspected that he is an alien, because he does not meet, or does not probably meet, the third limb of the tripartite test (Aff–KKG at [9]).

69    Mrs Grindlay’s evidence was that she arrived at this state of satisfaction as follows:

1.    She is aware of the decision in Love (Aff–KKG at [6]).

2.    She understands that whether Mr Hobson can reasonable be suspected of being an alien turns on whether Mr Hobson meets or probably meets the tripartite test endorsed by a majority of the High Court in Love (Aff–KKG at [7]).

3.    She has read the AGS Advice and also the material provided by Mr Hobson and/or his solicitor in these proceedings being Aff-CF, the Second Aff-CF, Aff-JDH and Exhibit 1. Taking into account those materials and, in particular the AGS Advice, she

(a)    believes that Mr Hobson has demonstrated the first limb of the tripartite test, being of Aboriginal descent,

(b)    also believes that Mr Hobson has demonstrated the second limb of the tripartite test, being self-identification as a member of an Aboriginal community,

(c)    is of the view that Mr Hobson does not meet, or does not probably meet, the third limb of the tripartite test, being recognition by a traditional society or by persons enjoying traditional authority within an Aboriginal clan or community, and, having thought about this limb and the materials before her, accepted the AGS Advice on this limb (Aff–KKG at [8]).

70    As has already been observed, Mrs Grindlay confirmed that the only records to which she had referred were the copies of the ICSE and TRIM records. She also agreed that she had not spoken with anyone about her reasonable suspicion. In particular, her evidence was that she had never spoken with Mr Hobson, nor any Dharug person, or other Government agency about either the Dharug or Mr Hobson.

71    Despite having initially asserted that she had read the judgments in Love and Helmbright, Mrs Grindlay conceded that she had not in fact read any of the cases concerned with the tripartite test: rather, she had read what was said by the AGS about the cases referred to in the AGS Advice. When pressed on her understanding of the third limb of the tripartite test, Mrs Grindlay said that her understanding of a ‘traditional society’ was ‘an Aboriginal society that exists that has laws and customs that existed prior to Australia becoming a sovereign nation or prior to British settlement of Australia’. As to what she understood by ‘persons enjoying traditional authority’ she said that ‘they enjoy traditional authority to confer on someone membership to become a member of a society, an Aboriginal society’. When pressed further, as to what she understood the test to mean, apart from her mere restatement of paragraph 8.3 of her affidavit, Mrs Grindlay said, ‘I’m saying that they have or they are recognised to have that authority to do so … by other Aboriginal people’. This last answer closely approximated the third requirement of the AITSIS ‘working criteria’ which is ‘being accepted as such by the community in which you live’, which was contained in the materials that Mrs Grindlay said she had read (Aff-KKG at [3.2]).

72    The AGS Advice noted that Mr Hobson was ‘clearly recognised by Dharug elders’ and, in particular adverted to the letter of Lexodius Dadd as being the most cogent evidence that Mr Hobson is recognised as a Dharug person by Dahrug Elders. Nevertheless, the AGS Advice maintained the stance that there is no ‘traditional society’ in the requisite sense on the basis of its construction of the judgment of Nettle J in Love and on the basis of the decision in Gale (No 1).

73    Despite the evidence that had been identified in the AGS Advice, and as was apparent from the evidence she had read in both Mr Hobson’s affidavit and the Second Aff-CF, Mrs Grindlay made no further enquiries of anyone despite remaining unconvinced about the status of Dharug people to the extent that that was relevant to her decision-making process.

74    What is required for the purposes of satisfying s 189 of the Migration Act was stated by the Full Court in Goldie v Commonwealth of Australia [2002] FCAFC 100:

[4]    …the word ‘reasonably’ has been placed before the word ‘suspects’ in 189(1). The adverb makes it clear that, in order to justify arrest and detention, the suspicion that a person is an unlawful non-citizen must be justifiable upon objective examination of relevant material. Given that deprivation of liberty is at stake such material will include that which is discoverable by efforts of search and inquiry that are reasonable in the circumstances.

    …

[6]    It is trite to say that what is reasonable in a particular case depends upon the circumstances of that case. It is worth remembering, however, that all of the circumstances must be considered. If, as in the present case, an officer is aware of conflicting facts, the reasonableness of any suspicion formed by that officer must be judged in the light of the facts available to him or her at the particular time. It may be that the existence of a particular fact would ground a reasonable suspicion in the mind of the officer if it were the only fact known to him or her. If, at the time of forming the suspicion, the officer is aware of conflicting facts, it may not be reasonable simply to discard those facts and form a suspicion on the basis of the single fact capable of supporting such a suspicion. That is, the officer is not empowered to act on a suspicion reasonably formed that a person may be an unlawful non-citizen. The officer is to detain a person whom the officer reasonable suspects is an unlawful non-citizen. That, of course, is consonant with the serious act the officer is empowered to carry out. Section 196 operates upon a person detained under s 189 who is an unlawful non-citizen, not upon a person reasonably suspected of being an unlawful non-citizen. The scheme contemplated under the Migration Act is indefinite detention pending removal or deportation under administrative fiat. It is not detention for the purpose of curial review or determination of status. These provisions confirm that the appropriate construction of s 189 is that an officer in forming a reasonable suspicion is obliged to make due inquiry to obtain material likely to be relevant to the formation of the suspicion.

(original emphasis)

75    Mrs Grindlay’s obligation was not to act on a suspicion reasonably formed that Mr Hobson may not be an Aboriginal Australian but that he is not an Aboriginal Australian. It is apparent that Mrs Grindlay made no inquiries beyond the material she had been given. In particular, she did not seek to interrogate the Commonwealth’s Office of the Registrar of Indigenous Corporations as to its understanding of Dharug people as an Aboriginal society, clan or community. Nor did she make any inquiries of AIATSIS in relation to its ‘working criteria’ for confirmation of Aboriginal or Torres Strait Islander heritage.

76    With respect to Gale (No 1), the AGS Advice said, at [50], ‘… we advise that the characterisation of the Dharug in Gale (No 1) tends against a detaining officer concluding that any recognition offered by Dharug elders or other persons enjoying traditional authority among the Dharug would be sufficient for the purposes of the third limb of the tripartite test’. Gale (No 1) concerned a native title claim by a group who identified themselves, inter alia, as members of the Dharug. For reasons that are not presently relevant, the applicant elected to offer no evidence. The respondents sought, and were granted, a determination pursuant to s 225 of the Native Title Act 1993 (Cth) that native title does not exist in relation to the land that was the subject of the claim. The Court proceeded on the evidence that had already been marked as exhibits, being the intended evidence of the members of the claim group and the expert witnesses. The applicant declined to call the witnesses.

77    The Minister contends that this determination, and Madgwick J’s reasons for reaching that conclusion, are relevant to whether the recognition offered to Mr Hobson is capable of meeting the third limb. The AGS Advice, which Mrs Grindlay said she had accepted (Aff-KKG at [8.3]) said, at [51], ‘We do not consider that a detaining officer should conclude that there is no ‘traditional society’ for the purposes of the third limb solely on the basis that the society has been unsuccessful in a native title claim.’ But, after setting out many of Madgwick J’s findings the AGS opined, at [61]:

The material now before the Department does not indicate any further or better evidence about the existence of a traditional society, or proof that the elders offering recognition of Mr Hobson otherwise enjoy traditional authority, than was before Madgwick J in Gale (No 1). This is on the basis either of applying Nettle J’s approach from Love, or some broader approach to the third limb, such as that described by Mortimer J in Helmbright. Consequently, it would seem that recognition by Dharug elders cannot be characterised as recognition of the kind required by the third limb.

78    Justice Madgwick had observed, at [14], that following the decision in Yorta Yorta it

is now clear … that the native title rights and interests which are the subject of the Native Title Act are those which existed at the time of British sovereignty over Australia, survived fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected: Yorta Yorta at [77] and [134]. Such native title rights and interests derive from traditional laws and customs in the sense that they survived the acquisition of sovereignty over Australia: Yorta Yorta at [75].

79    The question Madgwick J was asked to decide, under s 223(1)(b) of the Native Title Act, is whether the claimants, by traditional laws acknowledged and traditional customs observed, have a present connection with the claim area: Gale (No 1) at [108]. The Minister emphasised the following paragraphs of his Honour’s reasons as relevant to Mr Hobson’s ability (or not) to satisfy the third limb.

118    On the available evidence, the claimants do not constitute, nor is any of them a member, not even the last member, of a society that in any presently relevant sense observes traditional laws or customs. I do not doubt their Aboriginality, their descent (biological or otherwise) from at least one pre-sovereignty Aboriginal ancestor, their self-identification as an Aboriginal people and their acceptance as Aboriginal people descended from the original inhabitants of at least some parts of their larger claimed area (roughly the Sydney basin) by at least some other people generally recognised as Aborigines, their knowledge of and regard to some traditional lore, skills and customs, or their aspirations for factual and moral recognition as descendants of the original owners of Sydney lands. However, that is not enough to found a native title claim. There must be shown a society that has continued to exist since before sovereignty and which was and is united by its acknowledgement of traditional laws and observance of traditional customs, allowing that the laws and customs may have adapted. It must further be shown that the governing laws and the identifying customs have had a ‘continuous existence and vitality’ since sovereignty.

119    Thus, there is no reason on the evidence before me to believe that any of the applicant group is presently a member of a society, in the sense of a people, such that the society and its members could be said to acknowledge traditional laws or observe traditional customs. There is a modern association of Aboriginal people who wish to have recognition of their claims to be, and who have a sense of themselves as, direct descendants of Aboriginal people who lived in the Sydney basin before the coming of the British. But, by reason of the devastating and thoroughly pervasive effects of the coming of the British and of subsequent Australian history, they do not constitute a ‘society sufficiently organised to create [or] sustain rights and duties’ (per Toohey J in Mabo at 187). Even if they now did so, that would not be a continuation by tradition, but at best an attempted re-creation, of a society which may well have had native title rights and interests.

    …

121    There is no evidence that there is now anything like a body of traditional laws and customs, having a normative content in relation to rights or interests in land, which any member of the claimant group now acknowledges or observes.

    …

124    … The clear impression is that there have been re-arrangements of a kind quite different from what occurred before sovereignty, so as to indicate not the survival of traditional kinds of laws and customs concerning periodic necessities for clan adaptations, but a break with anything previously known. The re-arrangements have, after all, occurred in what is undoubtedly a radically different context: (a) the ouster of all Aboriginal people from the great bulk of the lands in the Sydney region and environs; (b) inter-marriage with non-Aboriginal people; and (c) the cessation of (or, at the very least, fundamental change to) traditional ways of living – economic, political, social and spiritual.

    …

126    … The evidence is lacking as to the content of the pre-sovereignty norms as to relations to and in connection with land inherent in traditional laws and customs. Knowledge of those norms has apparently been irretrievably lost … it seems a reasonable inference, from what is known of a range of Australian Aboriginal societies less disturbed than those in and adjoining the Sydney basin, that it was unlikely that all of any group’s land in any meaningful sense belonged to all members of an Aboriginal people. It is also by no means clear that, in the Sydney basin, language groups were necessarily co-extensive with land owning or controlling polities.

127    … as late as the 1950s there may have been one or more Darug-speakers still living; as between different families and individuals, change in ideation and ways of living is hardly likely to have been uniform. Nonetheless, there is now no real doubt that for a long time there has been no acknowledgement or observance by any known person, including members of the claimant group of anything like the body of traditional laws and customs that regulated pre-1788 Aboriginal life, including people’s relations to and in respect of land. A few beliefs, stories, values and family traditions, which it is fair to call vestigial, and some surviving practical bush knowledge in relation to gleaning food and medicine from the land and any still unpolluted streams, do not begin to amount to such a body.

    (my emphasis)

80    What is apparent from the paragraphs referred to by the Minister, and in particular from the passages I have emphasised, is that the context in which Gale (No 1) was decided is very different from that in which Mr Hobson’s arises. Justice Madgwick was concerned with whether he was satisfied, in the absence of any witnesses being called by the applicant and without any of the evidence being tested by cross-examination, of a sufficient basis to adjust rights in rem. This was a matter of which his Honour was acutely aware noting, at [42], that in assessing the evidence that was before him, in particular the evidence of oral history and oral traditions,

In this field … a judge can do little else but try to proceed on a broad, common sense basis, bearing in mind the purpose for which the enquiry is being undertaken. Here that purpose is to resolve disputes as to rights and interests in land between parties, where nevertheless the court’s resolution may have effects against all the world.

(my emphasis)

81    In the present case, the enquiry as to whether Mr Hobson satisfies the third limb of the tripartite test is to determine whether a resident non-citizen of Aboriginal descent, who identifies and is accepted as Aboriginal by elders, is to be treated as an alien.

82    Ultimately Mrs Grindlay accepted the AGS Advice. Informed by that Advice, Mrs Grindlay’s ‘reasonably suspicion’ rose no higher than that Mr Hobson ‘does not meet, or probably does not meet’, the third limb of the tripartite test. It is not sufficient for a detainer to assert that a person’s detention is probably lawful. The detainer is required to show that the detention is lawful. To the extent that Mrs Grindlay took comfort from the AGS Advice, that is understandable. However, the basis for the conclusion reached in the AGS Advice was contrary to the evidence Mrs Grindlay herself had given in cross-examination as to her understanding of the meaning of the third limb. Her evidence was that a person enjoys traditional authority if ‘they have or they are recognised to have that authority to do so by other Aboriginal people’. The AGS Advice said, at [62]:

For the reasons given above, while Mr Hobson appears to be recognised as a Dharug person by Dharug elders or others enjoying traditional authority among the Dharug, we do not consider that the Dharug are a traditional society in the sense required by the third limb of the tripartite test.

83    Nevertheless, any advice relied on by an officer in such circumstances must itself be objectively reasonable. As Jagot J said in Guo v Commonwealth of Australia [2017] FCA 1355 at [43], were it otherwise, the consequence would be:

to render the detaining officer a mere cipher; a person inferred to act on the basis of unquestioning obedience … without the bringing to bear of any independent judgment. Such an approach is inconsistent with the Act, which not only vests in relevant officers a significant power (to deprive an individual of their liberty) but also constrains the exercise of that power by an equally significant responsibility personal to the individual officer (to know or reasonably suspect that a person is an unlawful non-citizen).

84    In my view, the AGS Advice was not itself objectively reasonable. First, it seeks to put a gloss on the decision in Love by its focus on the decision of Nettle J in a manner that is contrary to how Love has been understood in this Court, in particular, in McHugh and Helmbright. Secondly, the reliance on the decision in Gale (No 1) to dismiss or discount the evidence that was before the officer was apt to mislead in the absence of a clear distinction being drawn between the purpose for which evidence was being considered in Gale (No 1), namely to affect rights in rem, and the purpose for which Mrs Grindlay was to assess the evidence, namely to inform her reasonable suspicion as to whether Mr Hobson, as a resident non-citizen of Aboriginal descent, who identifies and is accepted as Aboriginal by elders, is to be treated as an alien. Thirdly, the advice that it would be open to a detaining officer that Mr Hobson ‘does not meet or probably meet’ the third limb of the tripartite test is plainly wrong. A detaining officer cannot discharge the onus of proving the lawfulness of detention on the basis of a suspicion that the detention is probably lawful. For the suspicion to be reasonable, an officer must suspect that the detention is lawful. Mrs Grindlay was equivocal in her suspicion as to whether or not Mr Hobson met the third limb of the tripartite test. Her suspicion that he was not an Aboriginal Australian was, therefore, not reasonable.

Disposition

85    Mr Hobson claims to be an Aboriginal man, a Dharug man. It was accepted by the Minister that he is a biological descendant of an Aboriginal person. It was also accepted by the Minister that he identifies as an Aboriginal Australian. The Minister has not discharged the burden, by clear and cogent evidence, of proving that Mr Hobson’s detention is, and has been at all times throughout the period of detention, lawful.

86    Further, the suspicion held by the relevant officer is that Mr Hobson does not meet, or probably does not meet, the third limb of the test set out by Brennan J in Mabo No 2 (and reiterated by Bell J in stating the ratio of Love at [81]) because he is not recognised by a ‘traditional society or by persons enjoying traditional authority within an Aboriginal clan or community’. In light of the evidence that has been adduced by Mr Hobson, and in light of the relevant officer being uncertain as to whether Mr Hobson may or may not meet the third limb of the tripartite test, her suspicion that Mr Hobson is not an Aboriginal Australian is not reasonable. There is no room for any presumptions in favour of the Executive where the liberty of the subject is concerned: Dillon v The Queen [1982] AC 484 at 487 (Privy Council); McHugh at [53] per Allsop CJ. The Minister has failed to discharge the onus of proof that an officer held the reasonable suspicion that Mr Hobson is an alien by not being an Aboriginal Australian.

87    For the above reasons, Mr Hobson is entitled to the issue of a writ of habeas corpus.

Associate:

Dated:    21 April 2022